Chinese Drywall Manufacturer Held in Default - Failed to Repsond to Service of Process

Over the last month I have mentioned United States Senate Bill 1606 as being important for Process Servers to be aware of.  This bill would make it easier for U.S. plaintiffs to effect service of process on foreign manufacturers by requiring them to maintain a registered agent here in the United States.


An example of the problems associated with the current system for effecting service and holding foreign manufactures responsible is a case being heard in Louisiana. The following information is from a blog called the Injury Board:

An Alabama and Florida home builder filed a motion asking the court to rule against Chinese Drywall Manufacturer, because the company had not responded to the lawsuit after the builder was finally able to serve the company in China this summer.

The ruling came during a hearing taking place in New Orleans, LA, where dozens of lawsuits against foreign manufacturers, building suppliers, and homebuilders have been consolidated.

The Foreign Manufacturers Legal Accountability Act of 2009, introduced this summer, will make it easier to hold foreign manufacturers accountable in the U.S. court system by doing several things:

• Requires manufacturers to have an “agent” located in at least one state where the company does business that would accept service of process for any civil and regulatory claims.

• Companies would consent to state and federal jurisdiction, holding foreign manufacturers accountable to those judicial standards

For more detalis about this story please visit InjuryBoard.com http://bit.ly/3Adqzz

CA Appellate Court Rules on SOP pursuant to Hague Convention

CA Appellate Court rules that International service of process pursuant to Hague not necessary to obtain jurisdiction over Japanese Company. The opinion stated in part the following:

This court issued an OSC in response to this petition for writ of mandate because it presents an issue of some public importance that has not yet been squarely faced by a California state court, in a published opinion, in this particular context: The question of whether a Japanese manufacturer can be served under California law simply by serving the Japanese manufacturer’s American subsidiary. The trial court ruled that a Japanese manufacturer could indeed be validly served that way. The method just seemed too easy a way to get around the Hague Service Convention and we scheduled an OSC on the petition to give us the chance to study the issue.


On review, however, it turns out that, yes, it really is that easy. And not only that, there is nothing this court, as a matter of California common law, can do about it. We are a court under authority, and there is a non-overruled, non-distinguishable California Supreme Court case, Cosper v. Smith & Wesson Arms Co. (1959) 53 Cal.2d 77, that makes service on the California representative of a foreign parent valid — that is, valid as to the foreign parent — under California law. And not only that, but there is a 1988 federal United States Supreme Court case, Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 486 U.S. 694 (Schlunk), that says when service is valid under state law on the American subsidiary of a foreign manufacturer, there is no need to serve papers in accord with the Hague Service Convention. Accordingly, we have no choice but to deny the petition for writ of mandate.

The following link will take you to the published decision. http://bit.ly/h5kbj

C.A. Upholds Default in Malpractice Action Against Los Angeles Attorney

Here is a case of interest that upholds Substituted Service on Employee of Private Postal Facility as being valid by Appellate Panel.


The following is a link to the Metropolitan News article.

http://bit.ly/4G6tKm

Electronic Court Filing in Washington D.C. Deflates Bicycle Messenger Business

eFiling continues to have a negative impact on messengers...In Washington D.C. This is the latest in a series recent instances where the traditional messenger/courier companies are being negatively impacted by the progress that eFiling affords.



District of Columbia Courts - Washington Post Story http://bit.ly/c6WkB


King County Courts - Seattle Times Story http://bit.ly/Lhyn9


Philadelphia County Courts - Law.com Story http://bit.ly/dufxh


New York City Courts - ABA Journal Story http://bit.ly/JMmG2


San Francisco County Courts - Wired Magazine Story http://bit.ly/gjo4o San Francisco Chronicle Story - http://bit.ly/3gfHoN


I wonder at what point will the Process Serving profession take note of these developments and realize that traditional service of process is also at risk of being transformed by the implementation of technologies that can bring tremendous efficiencies to moving documents and information from one place to another in a blink of the eye...


All that stands in the way of this becoming a reality is the legal community embracing change. The Process Serving community can play an important role in shaping the future of the industry, but for some reason has not stepped up to the plate...

I started a Yahoo Group for Process Servers

Service of Process Looking Froward - Process Server Group

Purpose:


- Discuss issues facing the profession


- Expand your referral network


- Service of Process related product reviews


Service of Process Looking Forward was created to provide process servers and related litigation support providers with a forum to discuss, debate and otherwise share information about the challenges facing the process serving profession.


Service of Process Looking Forward seeks to continue to establish itself as a blog that provides the most relevant, timely and actionable information to the Process Serving Profession.


To join click the link in the upper righ column of this blog.

Thank You-
Jeff H. Karotkin, Moderator

Service of Process Best Practices Adopted in Michigan

I found the following is text in a written public comment submitted by the National Association of Retail Collection Attorneys (NARCA) sent to the FEDERAL TRADE COMMISSION. The FTC is currently holding a series of roundtable discussions dealing with Protecting Consumers in Debt Collection Litigation and Arbitration matters.

“Because process servers are exempt from the definition of a debt collector´ under the FDCPA, the Federal Trade Commission has no authority over the mechanism of service of process in state court collection proceedings. NARCA recommends that the procedures for regulating service of process remain at the state court level. NARCA is open to working with the Federal Trade Commission to develop best practices and procedures on a state level for service of process. A model embodying this approach as has recently been implemented by the Michigan Creditors Bar Association. NARCA also believes that state court and legislatures may have a role to play in promulgating rules and procedures, including licensing requirements, for private process servers”.


For the most part I find the statement to be a positive attempt by NARCA to address a problem whether real or perceived with private process servers and the role they play in the collection of consumer debt cases.


I find it interesting that NARCA suggests the formation of Best Practices for the Service of Process and cites the Michigan Creditors Bar Association’s creation and implementation of Best Practices for Process Servers.  I am concerned that the Best Practices do not appear to have been drafted with any input from the private process serving profession.


To illustrate this point, the Michigan Creditors Bar Association Best Practices and the Michigan Court Officer, Deputy Sheriff and Process Server Association have entirely different sets of Best Practices for the Service of Process.


Michigan Creditors Bar Association Best Practices


Michigan Court Officers and Process Servers Best Practices


On its face it does not appear that they collaborated in any way. Having read them both I don’t have a problem with either set, it is a shame they did not work to create one set of best practices.


I am also concerned that there is nothing in the NARCA statement suggesting that the FTC or NARCA work with actual process servers in addressing the issues raised during the roundtable discussions. Fortunately, NAPPS and other process servers associations are starting to take a more proactive role in these discussions.


The NARCA comment also suggests regulation of process servers at a state level.  I am no fan of government regulation of the process serving profession. That said I recognize that if the private process servers ignore this issue it is likely government regulations will be forced upon us. Given the option, I would rather see the profession step up and make an effort to be a part of any regulatory solution that might result in an effort to create an outcome that we can live with.


I am interested in your thoughts.

Is this the Future of Service of Process?

Australian Judge Approves sending default notices via Facebook

In December last year the social networking site Facebook was used to notify a couple that they lost their home after defaulting on a loan. The court approved this method of delivery only after there had been numerous failed attempts to effect service at the couple's home and by email.

Australian courts have in the past given permission to serve process by standard e-mail and text messages when it was not possible to effect service on the subjects in person.


Facebook released a statement following the court ruling. "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives".

FACEBOOK SOP - PART TWO – THIS TIME IN NEW ZEALAND

Last year, it was an Australian court that allowed documents to be served on two defendants via the very popular social network site Facebook. Now, a New Zealand court has also has agreed; New Zealand High Court Associate Justice David Glendall approved the delivery of court papers via a Facebook notification to the account of a man being sued. One can only hope this Facebook trend will soon die of natural causes.

For more information about the New Zealand case, please visit , NZ court papers can be served via Facebook, judge rules, March 16, 2009, written by Ian Llewellyn http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10561970

Process Service by E-Mail - New York

A Snyder v. Alternate Energy Inc., a New York City Civil Court decision from last year allows e-mail service in certain circumstances.

For a very thorough review of this case please visit the following blog post:

The Volokh Conspiracy http://volokh.com/posts/1210268085.shtml

Aside from the obvious implications of this court decision, what I find particularly fascinating is the comments to the author’s blog. The comments mostly from lawyers both applaud the decision and question just how effective traditional email can be for giving actual notice. Great comments! Check out the blog to gain some insight into what attorney’s think about this trend.

eService Pursuant to Rule 4 (f) of the FRCP

Earlier this year, a Virginia judge was asked to approve e-mail service of process.

Lawyers for indicted former Rep. William J. Jefferson, D-La., have asked Alexandria U.S. District Judge T.S. Ellis III to allow service of process by e-mail on a hard to find international witness. The actual Court Motion can be found at: http://bit.ly/WWLXo

2nd FTC Roundtable to Discuss Debt Collection Arbitration and Litigation

The second round of at least three Federal Trade Commission Roundtable discussions is scheduled for September 29th and 30th in San Francisco, CA.

Like the last session in Chicago the roundtable discussion will cover topics in consumer debt collection arbitration proceedings, such as the role of consumer choice, perceptions of bias, transparency of results, post-decision issues, and future directions in arbitration of consumer debts.

The second day will cover topics in consumer debt collection litigation proceedings, such as service of process, consumer default rates, time-barred debts, evidentiary requirements in collection actions, and post-judgment issues.

It is my understanding that the National Association of Professional Process Servers (NAPPS) has submitted public comments and has been invited to participate on the second day.

I can only hope that the private process serving profession will not take the abuse it took during the Chicago roundtable. I trust process servers will be well represented.

If you are interested in attending or watching a live webcast of the roundtable, please visit the following link for more information. http://bit.ly/3jZmO1